State v. Warren , 312 Neb. 991 ( 2022 )


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    Nebraska Supreme Court Advance Sheets
    312 Nebraska Reports
    STATE V. WARREN
    Cite as 
    312 Neb. 991
    State of Nebraska, appellee, v.
    Benjamin J. Warren, appellant.
    ___ N.W.2d ___
    Filed December 2, 2022.   No. S-21-1003.
    1. Appeal and Error. Where no timely statement of errors is filed in an
    appeal from a county court to a district court, appellate review is limited
    to plain error.
    2. Courts: Appeal and Error. In cases where no statement of errors was
    filed, but the record showed that the district court considered an issue
    that was also assigned to a higher appellate court, the Nebraska Supreme
    Court or the Court of Appeals may consider that issue.
    3. Effectiveness of Counsel: Appeal and Error. Appellate review of a
    claim of ineffective assistance of counsel is a mixed question of law and
    fact. When reviewing a claim of ineffective assistance of counsel, an
    appellate court reviews the factual findings of the lower court for clear
    error. With regard to the questions of counsel’s performance or prejudice
    to the defendant as part of the two‑pronged test articulated in Strickland
    v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984),
    an appellate court reviews such legal determinations independently of
    the lower court’s decision.
    4. Rules of the Supreme Court: Appeal and Error. The purpose of Neb.
    Ct. R. § 6‑1518(B) is to specifically direct the attention of the reviewing
    court to precisely what error was allegedly committed by the lower court
    and to advise the nonappealing party of what is specifically at issue in
    the appeal.
    5. Records: Appeal and Error. The appellant has the duty to present a
    record supporting the assigned errors.
    6. Effectiveness of Counsel: Proof. Generally, to prevail on a claim of
    ineffective assistance of counsel under Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984), the defendant must
    show that his or her counsel’s performance was deficient and that this
    deficient performance actually prejudiced the defendant’s defense.
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    Nebraska Supreme Court Advance Sheets
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    STATE V. WARREN
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    312 Neb. 991
    7. ____: ____. To show prejudice, the defendant must demonstrate a rea-
    sonable probability that but for counsel’s deficient performance, the
    result of the proceeding would have been different.
    Appeal from the District Court for Lancaster County, Ryan
    S. Post, Judge, on appeal thereto from the County Court for
    Lancaster County, Matthew L. Acton, Judge. Judgment of
    District Court affirmed.
    Nicholas R. Glasz, of Glasz Law Firm, for appellant.
    Douglas J. Peterson, Attorney General, and Austin N. Relph
    for appellee.
    Heavican, C.J., Miller‑Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Funke, J.
    INTRODUCTION
    Following a jury trial in the county court for Lancaster
    County, Nebraska, Benjamin J. Warren was convicted of dis-
    turbing the peace. Warren’s counsel timely filed an appeal with
    the district court for Lancaster County and later filed a bill of
    exceptions. However, counsel did not file a statement of errors
    within 10 days of filing the bill of exceptions, as is required by
    Neb. Ct. R. § 6‑1518(B). As a result, the district court reviewed
    Warren’s appeal only for plain error. Finding none, it affirmed
    the county court’s judgment. Warren then filed a motion to
    reconsider, which the district court denied after considering
    counsels’ arguments and the record as to Warren’s beliefs
    that he is not guilty and would have been found not guilty
    if his proposed witness had testified at trial. Warren appeals.
    We affirm.
    BACKGROUND
    In 2020, Warren was charged with obstructing a peace offi-
    cer, disturbing the peace, and second degree criminal trespass.
    After trial in the matter, Warren was found guilty of disturb-
    ing the peace, but not guilty of the remaining charges. At
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    STATE V. WARREN
    Cite as 
    312 Neb. 991
    sentencing, Warren was ordered to pay a $300 fine and was
    given credit for time served.
    Following sentencing, Warren’s trial attorney timely filed a
    notice of appeal with the district court for Lancaster County. A
    motion for substitute counsel was then sustained by the county
    court, and a new attorney was appointed to represent Warren.
    Counsel caused to be filed a bill of exceptions; however, the
    attorney failed to file a statement of errors within 10 days of
    filing the bill of exceptions or at any time thereafter.
    Warren’s appeal came on for hearing before the district
    court on August 24, 2021, at which time, counsel orally moved
    to submit the matter to the court on the parties’ briefs, which
    included Warren’s initial brief, the State’s answer brief, and
    Warren’s reply brief. Warren’s counsel indicated Warren’s
    agreement to this, and the court verified Warren’s consent.
    Warren said “[y]es” when the court asked him whether submis-
    sion on the briefs was “okay.”
    Several days later, the district court affirmed the judgment
    and sentence of the county court. Because no statement of
    errors was timely filed, the district court limited its review to
    plain error per State v. Nielsen. 1 It found none.
    Warren subsequently sought reconsideration from the dis-
    trict court, arguing that he was not guilty of disturbing the
    peace and that he would have been found not guilty if his
    proposed witness had been called to testify at trial. The motion
    for reconsideration also stated that although Warren’s counsel
    advised him that testimony by a single witness that his or her
    peace was disturbed, if believed beyond a reasonable doubt by
    the jury, would suffice to prove guilt, Warren “believes that
    this would be considered plain error” under Nielsen.
    Simultaneous with the request for reconsideration, the sec-
    ond attorney to appear on Warren’s behalf moved to with-
    draw. This motion was granted, and yet another attorney was
    appointed to represent Warren in the matter.
    1
    State v. Nielsen, 
    301 Neb. 88
    , 
    917 N.W.2d 159
     (2018).
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    STATE V. WARREN
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    At the hearing on the motion to reconsider, Warren argued
    that, on appeal, he received ineffective assistance of counsel
    and that he should be allowed to file the statement of errors for
    the court to reconsider the appeal.
    The district court subsequently overruled Warren’s motion
    to reconsider, which it treated as a motion to alter or amend
    per DeBose v. State 2 and related cases. The district court spe-
    cifically mentioned Warren’s beliefs regarding his guilt and
    his proposed witness’ testimony. It indicated that “[o]n each
    of these points,” it “considered the arguments of counsel [and]
    reviewed the record,” but it denied the motion.
    Warren appealed to the Nebraska Court of Appeals, and we
    moved the matter to our docket.
    ASSIGNMENTS OF ERROR
    Warren assigns, restated, that (1) the district court erred in
    limiting its review to plain error and (2) counsel was ineffec-
    tive in failing to file a statement of errors.
    STANDARD OF REVIEW
    [1,2] Where no timely statement of errors is filed in an
    appeal from a county court to a district court, appellate review
    is limited to plain error. 3 In cases where no statement of errors
    was filed, but the record showed that the district court consid-
    ered an issue that was also assigned to a higher appellate court,
    the Nebraska Supreme Court or the Court of Appeals may con-
    sider that issue. 4
    [3] Appellate review of a claim of ineffective assistance of
    counsel is a mixed question of law and fact. 5 When review-
    ing a claim of ineffective assistance of counsel, an appellate
    court reviews the factual findings of the lower court for clear
    2
    DeBose v. State, 
    267 Neb. 116
    , 
    672 N.W.2d 426
     (2003).
    3
    Nielsen, 
    supra note 1
    .
    4
    Houser v. American Paving Asphalt, 
    299 Neb. 1
    , 
    907 N.W.2d 16
     (2018).
    5
    State v. Ellis, 
    311 Neb. 862
    , 
    975 N.W.2d 530
     (2022).
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    error. 6 With regard to the questions of counsel’s performance
    or prejudice to the defendant as part of the two‑pronged test
    articulated in Strickland v. Washington, 7 an appellate court
    reviews such legal determinations independently of the lower
    court’s decision. 8
    ANALYSIS
    Failure to File Statement of Errors
    Warren argues that the district court erred by reviewing his
    appeal only for plain error, instead of reviewing the errors
    alleged in his briefs. He maintains that the district court should
    have considered the errors alleged in the briefs, because the
    court “had the matter submitted on [the] briefs.” 9 Warren’s
    arguments, however, are inconsistent with the prior decisions
    of this court and the record on appeal. As such, they are with-
    out merit.
    [4] Section 6‑1518(B) prescribes that in an appeal from
    the county court to the district court, the appellant shall file
    a statement of errors with the district court within 10 days of
    filing the bill of exceptions. Such statement shall consist of a
    separate, concise statement of each error allegedly made by
    the trial court, and each assignment of error shall be separately
    numbered and paragraphed. 10 This rule is a longstanding one,
    adopted in 1991, 11 and we have recognized that it serves an
    important purpose. The purpose of the rule is to specifically
    direct the attention of the reviewing court to precisely what
    error was allegedly committed by the lower court and to advise
    the nonappealing party of what is specifically at issue in the
    6
    
    Id.
    7
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984).
    8
    Ellis, 
    supra note 5
    .
    9
    Brief for appellant at 7.
    10
    § 6‑1518(B).
    11
    See State v. Hanger, 
    241 Neb. 812
    , 
    491 N.W.2d 55
     (1992).
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    STATE V. WARREN
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    appeal. 12 We and the Court of Appeals have repeatedly held
    that where an appellant fails to comply with this rule, appel-
    late review is limited to plain error under the standard previ-
    ously noted. 13
    Warren would have us disregard these precedents and find
    that the district court should have considered the errors alleged
    in his briefs because the matter was submitted on the briefs.
    We decline to adopt such an approach given the facts and cir-
    cumstances of this case. The record shows that Warren moved
    for the matter to be submitted to the court on briefs. His coun-
    sel indicated that he agreed to submission on the briefs, and
    the court expressly sought and received his consent to proceed
    in this manner. As the party who moved for submission on the
    briefs, Warren cannot now rely on the court’s acceptance of
    such submission as the basis for asserting that the court should
    have considered the arguments in the briefs despite the general
    rule that review is limited to plain error when an appellant fails
    to file a statement of errors.
    Further, the record shows that the district court actually con-
    sidered Warren’s beliefs about his guilt and his proposed wit-
    ness’ testimony in connection with Warren’s motion for recon-
    sideration. The district court limited its review to plain error
    under the precedents previously cited when it initially affirmed
    the judgment and sentence of the county court. However,
    Warren subsequently moved for reconsideration, which the dis-
    trict court treated as a motion to alter or amend. 14 At that point,
    the district court “considered the arguments of counsel [and]
    reviewed the record” as to Warren’s beliefs that he is not guilty
    12
    See, e.g., State v. Griffin, 
    270 Neb. 578
    , 
    705 N.W.2d 51
     (2005); State v.
    Zimmerman, 
    19 Neb. App. 451
    , 
    810 N.W.2d 167
     (2012).
    13
    See, e.g., North Star Mut. Ins. Co. v. Stewart, 
    311 Neb. 33
    , 
    970 N.W.2d 461
     (2022); Griffin, 
    supra note 12
    ; Zimmerman, supra note 12; State v.
    Harper, 
    19 Neb. App. 93
    , 
    800 N.W.2d 683
     (2011).
    14
    Cf. State v. Lotter, 
    301 Neb. 125
    , 135, 
    917 N.W.2d 850
    , 858 (2018)
    (motion for reconsideration is “functional equivalent” of motion to alter or
    amend judgment).
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    STATE V. WARREN
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    of disturbing the peace and that he would have been found not
    guilty if his proposed witness testified at trial.
    [5] It is not apparent from the record what, if any, other
    errors Warren’s briefs may have assigned as to the county court
    proceedings. The briefs are not part of the record on appeal.
    Additionally, he has not provided any indication of other
    alleged errors as to the county court proceedings beyond his
    beliefs about his guilt, his proposed witness’ testimony, and his
    conviction based on the testimony of one witness. The appel-
    lant has the duty to present a record supporting the assigned
    errors. 15 Insofar as Warren alleges that the district court erred
    in not considering other issues raised in the briefs, he failed to
    provide a record supporting such error.
    Ineffective Assistance of Counsel
    Warren argues that his “trial counsel” was ineffective in
    failing to file a statement of errors. 16 He argues that prejudice
    to his defense should be presumed because he “was effec-
    tively denied his due process right to appeal.” 17 He maintains
    that his case is “analogous” to Garza v. Idaho 18 and Roe v.
    Flores‑Ortega, 19 two decisions in which the U.S. Supreme
    Court found that prejudice is presumed where counsel fails to
    file an appeal when requested to do so by the defendant. 20 He
    similarly maintains that he received the same type of cursory
    review that the concurring opinion in State v. Sundquist 21 sug-
    gested may warrant a presumption of prejudice. We disagree.
    15
    See, e.g., Despain v. Despain, 
    290 Neb. 32
    , 
    858 N.W.2d 566
     (2015).
    16
    Brief for appellant at 7.
    17
    
    Id.
    18
    Garza v. Idaho, ___ U.S. ___, 
    139 S. Ct. 738
    , 
    203 L. Ed. 2d 77
     (2019).
    19
    Roe v. Flores‑Ortega, 
    528 U.S. 470
    , 
    120 S. Ct. 1029
    , 
    145 L. Ed. 2d 985
    (2000).
    20
    Brief for appellant at 8.
    21
    State v. Sundquist, 
    301 Neb. 1006
    , 
    921 N.W.2d 131
     (2019) (Cassel, J.,
    concurring; Miller‑Lerman, J., joins).
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    STATE V. WARREN
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    312 Neb. 991
    [6] Generally, to prevail on a claim of ineffective assist­
    ance of counsel under Strickland, 22 the defendant must show
    that his or her counsel’s performance was deficient and that
    this deficient performance actually prejudiced the defendant’s
    defense. 23 In this case, the State concedes that the failure to file
    a statement of errors was deficient performance. As such, we,
    like Warren, focus on the issue of prejudice.
    [7] To show prejudice under Strickland, the defendant gen-
    erally must demonstrate a reasonable probability that but for
    his or her counsel’s deficient performance, the result of the
    proceeding would have been different. 24 However, Strickland
    also recognized that “[in] certain Sixth Amendment contexts,
    prejudice is presumed.” 25 In these contexts, prejudice is “so
    likely that case‑by‑case inquiry into prejudice is not worth
    the cost.” 26
    Strickland and United States v. Cronic, 27 another ineffective
    assistance of counsel opinion issued the same day as Strickland,
    recognized three such contexts, involving the “actual or con-
    structive denial of the assistance of counsel altogether,” 28 “state
    interference with counsel’s assistance,” 29 and “counsel entirely
    fail[ing] to subject the prosecution’s case to meaningful adver-
    sarial testing.” 30 Subsequent opinions of the U.S. Supreme
    Court and this court have also found that a presumption of
    prejudice is warranted where the defendant is left completely
    22
    Strickland, 
    supra note 7
    .
    23
    State v. Lessley, ante p. 316, 
    978 N.W.2d 620
     (2022).
    24
    
    Id.
    25
    Strickland, 
    supra note 7
    , 
    466 U.S. at 692
    .
    26
    
    Id.
    27
    United States v. Cronic, 
    466 U.S. 648
    , 
    104 S. Ct. 2039
    , 
    80 L. Ed. 2d 657
    (1984).
    28
    Strickland, 
    supra note 7
    , 466 U.S. at 683.
    29
    Id., 466 U.S. at 692.
    30
    Cronic, 
    supra note 27
    , 466 U.S. at 659.
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    without representation on appeal and where counsel’s failure to
    file or perfect an appeal requested by the defendant results in
    the forfeiture of the proceeding itself. 31
    None of the previously recognized contexts are implicated in
    Warren’s case, and his argument that prejudice should nonethe-
    less be presumed because he was “effectively denied his due
    process right to appeal” 32 is inconsistent with the prior deci-
    sions of this and other courts.
    For example, in Flores‑Ortega, the U.S. Supreme Court dis-
    tinguished “forfeiture of a proceeding itself” from “a judicial
    proceeding of disputed reliability” when finding that prejudice
    is presumed where counsel fails to file an appeal requested by
    the defendant. 33 The Court opined that this was an “unusual”
    case and that counsel’s deficient performance deprived the
    defendant of “more than a fair judicial proceeding; that defi-
    ciency deprived [the defendant] of the appellate proceeding
    altogether.” 34 We drew a similar distinction in State v. Trotter 35
    when finding that prejudice is presumed where counsel’s fail-
    ure to file a proper poverty affidavit resulted in the dismissal of
    the defendant’s appeal. We concluded that the attorney’s failure
    to perfect the appeal “‘essentially waive[d] [the defendant’s]
    opportunity to make a case on the merits.’” 36
    Other decisions take a similar approach when discussing
    deficiencies in counsel’s performance that did not result in
    31
    Garza, supra note 18; Flores‑Ortega, 
    supra note 19
    ; Penson v. Ohio, 
    488 U.S. 75
    , 
    109 S. Ct. 346
    , 
    102 L. Ed. 2d 300
     (1988); State v. Trotter, 
    259 Neb. 212
    , 
    609 N.W.2d 33
     (2000).
    32
    Brief for appellant at 7.
    33
    Flores‑Ortega, 
    supra note 19
    , 
    528 U.S. at 483
    .
    34
    
    Id.
     See, also, Penson, 
    supra note 31
    , 
    488 U.S. at 88
     (“denial of counsel
    in this case left petitioner completely without representation during the
    appellate court’s actual decisional process. This is quite different” from
    case alleging other defects in counsel’s performance).
    35
    Trotter, 
    supra note 31
    .
    36
    
    Id. at 222
    , 
    609 N.W.2d at 40
    .
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    forfeiture of the proceeding itself. For example, in Cronic, the
    U.S. Supreme Court declined to presume prejudice where an
    inexperienced attorney, whom the court gave little time to pre-
    pare, represented the defendant in a complex mail fraud trial,
    because these factors “do not demonstrate that counsel failed
    to function in any meaningful sense as the Government’s
    adversary.” 37 Similarly, in Bell v. Cone, 38 the U.S. Supreme
    Court distinguished failure to oppose the prosecution “through-
    out the sentencing proceeding as a whole” from failure to
    oppose the prosecution “at specific points” when rejecting a
    presumption of prejudice where defendant’s counsel failed to
    “‘mount some case for life’” at a capital sentencing hearing.
    The defendant in that case argued that by failing to call wit-
    nesses at the hearing and waiving closing arguments, his coun-
    sel failed to test the prosecution’s case, as contemplated by
    Cronic. The Court disagreed, emphasizing that under Cronic,
    “the attorney’s failure must be complete.” 39
    The Bell Court further explained that “th[e] difference”
    between a case where prejudice must be proved and one where
    it is presumed is “not of degree but of kind.” 40 Likewise, in
    Florida v. Nixon, 41 the Court opined that the presumption
    of prejudice represents a “narrow exception” to the general
    requirement in Strickland that prejudice must be proved, which
    arises “infrequently,” when declining to presume prejudice
    where counsel conceded defendant’s guilt without defendant’s
    express consent. The defendant in Nixon also argued that
    counsel’s failure was a failure to test the prosecution’s case
    37
    Cronic, 
    supra note 27
    , 466 U.S. at 666.
    38
    Bell v. Cone, 
    535 U.S. 685
    , 696, 697, 
    122 S. Ct. 1843
    , 
    152 L. Ed. 2d 914
    (2002).
    39
    
    Id.,
     
    535 U.S. at 697
    .
    40
    
    Id.
    41
    Florida v. Nixon, 
    543 U.S. 175
    , 190, 
    125 S. Ct. 551
    , 
    160 L. Ed. 2d 565
    (2004).
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    under Cronic. However, the Court again rejected this argument,
    because counsel’s failure must be “‘complete.’” 42
    Collectively, these cases show why the circumstances
    alleged by Warren are not tantamount to being denied an
    appeal. Counsel’s failure to file a statement of errors did not
    result in forfeiture of the appeal, unlike in Flores‑Ortega and
    Trotter. Nor did it result in a complete failure to test the pros-
    ecution’s case, like that envisioned in Cronic, Bell, and Nixon.
    The record shows that counsel filed briefs and a motion for
    reconsideration on Warren’s behalf. It is true that the record
    does not establish what arguments counsel made in those
    briefs. However, the record does show that counsel advanced
    and the district court actually considered Warren’s beliefs that
    he is not guilty and that he would have been found not guilty if
    his proposed witness had been called at trial.
    Warren has not indicated any other assignments of error—
    beyond his beliefs about his guilt, his proposed witness’ tes-
    timony, and his conviction based on the testimony of one
    witness—that he made as to the county court proceedings.
    However, even assuming that there were other assigned errors,
    any inability to raise them due to counsel’s failure to file a
    statement of error would constitute a failure to raise particular
    issues, or to oppose the prosecution on specific points, as in
    Bell and Nixon. It would not demonstrate a complete failure
    under Cronic.
    Our earlier decision in State v. Assad 43 illustrates this point.
    The defendant in that case also argued that he “‘effectively
    received no direct appeal’” where his appellate counsel ini-
    tially assigned only errors pertaining to issues that were not
    preserved for appellate review. 44 We rejected this argument,
    42
    
    Id.
     See, also, Smith v. Robbins, 
    528 U.S. 259
    , 286, 
    120 S. Ct. 746
    , 
    145 L. Ed. 2d 756
     (2000) (distinguishing “denial of counsel altogether on appeal”
    from “mere ineffective assistance of counsel”).
    43
    State v. Assad, 
    304 Neb. 979
    , 
    938 N.W.2d 297
     (2020).
    44
    
    Id.
     at 988‑89, 938 N.W.2d at 303.
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    because the substance of his complaint was that counsel raised
    some issues, and not others, and this type of alleged error is
    subject to the general requirement in Strickland that prejudice
    be proved, rather than a presumption of prejudice. 45 We see no
    reason to adopt a different view here.
    Warren’s argument that his appeal received the same type of
    cursory review that was of concern to the concurring justices in
    Sundquist is similarly unavailing. 46 The defendant in Sundquist
    also alleged ineffective assistance of counsel based on his
    counsel’s failure to file a statement of errors when appealing
    a county court criminal case to the district court. However,
    the record showed that counsel had actually raised the same
    argument regarding the reoffer of a plea agreement that the
    defendant advanced on appeal, and the district court considered
    the merits of this argument, instead of reviewing only for plain
    error. 47 The concurring justices found these factors significant
    and suggested that a presumption of prejudice might other-
    wise be warranted if “counsel files no statement of errors and
    advances no arguments for reversal, which results in a cursory
    review by the district court for plain error.” 48
    In Warren’s case, however, it cannot be said that counsel
    “advance[d] no arguments for reversal,” as contemplated by
    the Sundquist concurrence. 49 As we previously observed, the
    record on appeal shows that Warren’s counsel filed initial
    and reply briefs, as well as a motion for reconsideration. As
    such, the facts of this case are not tantamount to the denial
    of appellate counsel contemplated by the concurrence in
    Sundquist.
    45
    Assad, 
    supra note 43
    .
    46
    See Sundquist, 
    supra note 21
     (Cassel, J., concurring; Miller‑Lerman, J.,
    joins).
    47
    Sundquist, 
    supra note 21
    .
    48
    
    Id. at 1025
    , 921 N.W.2d at 146 (Cassel, J., concurring; Miller‑Lerman, J.,
    joins).
    49
    See id.
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    As to the merits of Warren’s claim of ineffective assistance
    of counsel absent a presumption of prejudice, we note that
    appellate courts have generally reached ineffective assistance
    of counsel claims on direct appeal only in those instances
    where it was clear from the record that such claims were with-
    out merit or in the rare case where trial counsel’s error was so
    egregious and resulted in such a high level of prejudice that
    no tactic or strategy could overcome the effect of the error,
    which effect was a fundamentally unfair trial. 50 This is not such
    a case.
    CONCLUSION
    Warren’s argument that the district court erred by limiting its
    review to plain error is without merit. As to Warren’s argument
    that trial counsel was ineffective for failing to file a statement
    of errors, the record is insufficient to reach that argument.
    Accordingly, the judgment of the district court is affirmed.
    Affirmed.
    50
    State v. Kipple, 
    310 Neb. 654
    , 
    968 N.W.2d 613
     (2022).